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* Of the costs in civil actions.
Section 303. Fee bill abolished. Allowances given, termed costs.
304. When allowed of course, to plaintiff.
of an express trust, or a person expressly authorized by statute
to sue. 318. Costs on review of a decision of an inferior court, in a special pro
Costs in actions by the people.
$ 303. [258.] Fee bill abolished.
All statutes establishing or regulating the costs or fees of attorneys, solicitors, and counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his compensation, are repealed ; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action; which allowances are in this act termed costs.
a. The code has established rules regulating costs, which supersede all former roles upon the subject. Montgomery Co. Bank v. Albany City Bank, 3 Selden, 465.
Agreements as to compensation to attorneys. b. This section is identical with section 258 of the code of 1848. That section was held to have so far repealed the provisions of the revised statutes (2 R. S., 386) probibiting an attorney buying causes of action to sue thereon, or giving an inducement to procure a suit to be placed in his hands, as to make it lawful for a party to agree with an attorney to give him a portion of a demand, if and when recovered, in consideration of his bringing suit for the recovery of such demand. Satterlee v. Frazer, 2 Sand., 141.
a. In Barry v. Whitney, 1 Code Rep. N. S., 101, the superior court said, “ Without considering whether the statutes against champerty and maintenance have been abrogated by the code, which we very much doubt, we do not think the court is deprived of the power of looking into arrangements between attorney and client;" and in the case then before the court, a reference was ordered to inquire if the amount received by the attorney was excessive, and on the referee reporting that it was, the attorney was ordered to refund a portion of the amount he bad received. And see Easton v. Smith, 1 Smith, 318 ; Ward v. Wordsworth, ib., 598.
Costs in existing suits. 6. Costs in suits, both at law and in equity, pending 1st July, 1848, except the costs of motions therein, are to be regulated by the old fee bill. Truscott v. King, 4 Pr. R. 173; Doty v. Brown, ib., 429 ; 3 Code Rep., 119. Where an action was commenced under the code of 1848 and decided after the code of 1849 went into effect, it was held that the costs must be regulated by the code of 1849. Holmes v. St. John, 2 Code Rep. 46.
c. The old chancery fee bill is not repealed by the code. It is still in force, but is only applicable to proceedings had prior to July, 1851, in equity suits commenced prior to July 1848, and in such suits the costs prior to July, 1851, are those allowed by the chancery fee bill, and since July, 1851, those allowed by the code. Curtis v. Leavitt, 1 Abbott, 118,
d. In actions at law pending on July, 1848, and tried afterwards, the right to and amount of costs are governed by the former system, Costs of proceedings subsequent to the verdict, and to review the decision made at the trial, taken in the mode prescribed by the code, are governed by the code. McMasters v. Vernon, 10 Pr. R., 179.
e. Suits commenced before the code, are exempted from the repeal of all former statutes in relation to costs. In such suits the right to costs and the amount to be recovered, depend upon the statutory provisions in force when the code was enacted, -except in relation to those subsequent proceedings to which the code may apply. Rich v. Husson, 1 Duer, 617. Thus where, in an action of assumpsit commenced in the supreme court prior to July, 1848 (when the code took effect), and subsequently transferred to the superior court, and the plaintiff recovered a verdict for $50,-it was held that he was not entitled to costs; as the provisions of the revised statues applied, Duer, J., says, " As there can be no vested right in the costs during the pendency of a suit, both the right to recover them and the amount to be recovered must depend upon the legal provisions which are in force when the judgment is obtained. It is for this reason that it has frequently been decided, that a change of statutory provisions in relation to costs is just as applicable to existing as to future suits; and, pari ratione, the same construction must be given to a repeal. The 303d section of the code declares that " all statutes establishing or regulating the costs or fees of attorneys in civil actions are repealed;" and unless the operation of these words is restricted by other provisions in the code, or by subsequent legislation, the repeal musi doubtless' be construed to embrace existing suits so as to deprive each party of aby right to costs therein in any event as against the other. It is hardly possible, bor. ever, to believe that such was the intent of the authors of the code, and of the leg. islature; and we are satisfied that an exception in favor of suits then pending and undetermined-which, it must have occurred to them, was reasonable and just-is created by section 8, in the introductory part of the code. That section declares that the second part of the act, which includes section 303, relates to civil actions commenced in the courts of this State after the 1st of July, 1848, except when otherwise provided therein,' plainly meaning except such provisions as are declared in terms to relate to suits previously commenced. This general declaration of the intent of the legislature, controls and directs the interpretation of every section and sentence in the second part of the code; and we see no reason for doubting that it is just as applicable to a simple repeal, by which existing suits would otherwise be
affected, as to new and positive enactments. Section 303 must, therefore, receive the same construction as if the words except in relation to suits commenced on or before the first day of July, 1848, had immediately followed the words • are repealed.' It was insisted, however, that although this case may be saved from the sweeping repeal in section 303, still the costs which are recoverable are not regulated by the statutory provisions which were in force ou the first day of July, 1848; but that there is another section of the code (section 459) which is applicable to this case, and by a reference to which the questions which party is entitled to costs, and the amount of those costs, must alone be determined. That section applies the provisions of the code to existing suits, amongst other cases, to cases where there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings.' This provisiou can only affect the question by assuming that proceeding: include costs. * The sense of the legislature that the word proceeding does not include costs, is shown by the addition, in the third subdivision of the same section, of the words ' including the costs of an appeal :' the addition was made because it was believed to be necessary ; because without it the costs on an appeal could not have been recovered. We are, therefore, clearly of opinion that the right of the defendants to costs is not affected by the code, but depends on the statutory provisions in force when the code took effect.” Ib.
a. On a demurrer to a bill in equity in the supreme court, that court gave judgment for the plaintiff, overruling the demurrer with costs. The superior court reversed that judgment. The court of appeals reversed the judgment of the superior court, and affirmed that of the supreme court at special term“ with costs." "The words “ with costs," in the judgment of the court of appeals, does not, in such a case, mean the costs of that court, but of the court below. Bogardus v. The Rosendale Manufacturing Co., 1 Duer, 592.
b. Where a plaintiff in an equity suit claimed by bill of revivor and supplement, the same relief as was claimed by the plaintiff in the original bill, held that he would not be allowed to discontinue except upon payment of costs in both suits. Fisher v. Hall, 9 Pr. R., 259.
Common Pleas Coste. C. “By the code, all distinction between this court (New York common pleas) and the supreme court, as to the rate of costs, which formerly existed is abolished and as there is no other court of common pleas in the State, there would be no reason for that distinction being continued." Ingraham, First Judge, in Smith v. Keeler, 8 Pr. R., 55; and see Minks v. Wolf, ib., 238.
Double costs. d. It has been beld that this section abolished the right to double costs given by 2 R. S., 617 ss. 24 & 25; Hallenbeck v. Miller, 4 Pr. R. 239; Van Rensselaer v. Kidd, 3 Code Rep. 224; Bagner v. Jones, 1 Code Rep. N. S., 234; Moore v. Westervelt, ib., 131; Nestle v. Jones, ib., 401; 6 Pr. R., 172; Platt v. Wilson, 9 ib., 375; but the contrary was held in Murray v. Haskins, 4 Pr. R., 263. Chad. wick v. Brother, ib., 283; Barber v. Crossett, 6 ib., 45; 1 Code Rep. N. S., 401; Calkins v. Williams, and Calkins v. Brand, i Code Rep. N. S., 53; Tillou v. Sparks, 9 Pr. R. 465; Saratoga R. R. Co. v. McCoy, 10 ib., 526.
e. The provisions of the revised statutes allowing double costs, allowed them only in cases of verdict, demurrer, nonsuit, non pros., or discontinuance; and a report of referees is not within the statute. 19 Wend., 225. And in Calkins v. Williams, 1 Code Rep., N. S., 53; Calkins v. Brand, ib., Mason, J., held that public officers sued as such, are entitled, where they succeed in the action and the trial is by jury, to double costs. But that they could not have such costs where the trial had been had before referees; contra Tillou v. Sparks, 9 Pr. R., 465.
f. Before the code it was held, that where the defendant was entitled to double costs in the action he was also entitled to double costs on a writ of error. Burckle v. Luce, 3 Pr. R, 236; and see to the same effect, Foster v. Cleaveland, 6 Pr. R., 253; 1 Code Rep. N. S., 402.
Treble costs. The provision of the revised statutes giving a pariy who succeeded on his appeal treble costs, is abrogated by the code. Estus v. Baldwin, 9 P. R., 80.
Security for costs. The provisions of the revised statutes (2 R. S. 4th ed. 821 (620]), are as follow: § 1. When a suit shall be commenced in any court,
1. For a plaintiff not residing within the jurisdiction of such court; or for ser. eral plaintiffs, who are all non-residents; or,
2. For or in the name of the trustees of any debtor ; or,
3. For or in the name of any person being insolvent, who shall have been discharged from his debts, or whose person shall have been exonerated from imprison. ment, pursuant to any law, for the collection of any debt contracted before the assignment of his estate ; or,
4. For or in the name of any person committed in execution for a crime; or,
5. In the name of any infant whose next friend bas not given security for costs,
The defendant may require such plaintiff to file security for the payment of the costs that may be incurred by the defendant, in such suit or proceeding.
§ 2. If, after the commencement of a suit, the plaintiff shall become a nonresident, or all the plaintiffs shall become non-resident or insolvent, and be discharged or exonerated as aforesaid, or be sentenced to state prison for any term less than for life, the defendant may also require such security to be filed.
$ 3. The order to file such security, and that all proceedings on the part of the plaintiff be stayed until such security be filed and the sureties shall justify if er. cepted to, may be made by the court in which the action is pending, or by any judge thereof in vacation, upon due proof, by affidavit, of the facts entitling soch defendant thereto.
§ 4. Such security shall be given in the form of a bond, in a penalty of at least two hundred and fifty dollars, with one or more sufficient sureties, to the defeudant, conditioned to pay, on demand, all costs that may be awarded to the defendant in such suit.
$ 5. It shall be filed with a clerk of the court, and notice thereof be given to the defendant, or bis attorney. Within twenty days after the service of such notice, the defendant may except to the sufficiency of the sureties, by giving notice of such exception to the plaintiff's attorney.
96. Within twenty days after such notice of exception, the sureties shall jastisy, by an affidavit that they are worth double the penalty of such bond, over and above all debts ; of which affidavit, a copy shall be served on the defendant, or bis attorney. Such justification shall operate to discharge the order to stay proceed. ings.
§ 7. In the cases in which, according to the provisions of this title, a defendant at the commencement of a suit, shall be entitled to require security for costs, the attorney for the plaintiff shall be liable for such costs, to an amount not exceeding one hundred dollars, until security therefor be filed, as herein provided, whether such security shall have been required by the defendant or not.
$ 8. Such attorney may relieve himself from such liability, by filing security, and the sureties therein justifying, if excepted to, as herein provided, without being required to do so by the defendant, and by giving notice thereof to such defendant, or his attorney.
a. The foregoing provisions are not repealed by the code and are still in force, Ashbahs v. Coussin, 2 Sand. 632.
b. It isnot imperative on the court to grant an order for security for costs under all circumstauces. Robison v. Sinclair, 1 Denio, 629; Florence v. Bulkley, 1 Duer, 706.
c. The plaintiff cannot be required toʻfile security for costs when permitted to presecute in forma pauperis, nor be permitted so to prosecute if required to file secarity for costs. Florence v. Bulkley, 1 Duer, 706.
4. A temporary absence of the plaintiff will not entitle the defendant to security for costs. 2 Wend., 253 ; 4 ib., 602 ; 8 ib., 134. But an absence of a year is not temporary. 2 Wend., 258; and see 4 Sand. 198.
b. A suit must be commenced in the name of an infant-sole plaintiff— to entitle the defendant to security for costs. Hulburt v. Newell, 2 Code Rep. 54 ; and where a husband and infant wife brought a suit jointly, the defendant was not entitled to security for costs, although the husband was appointed and named in the proceedings as next friend of the wise. 16.
c. “It is a regulation of practice, entirely the creature of the court and under its control whether a next friend shall give security or not. When appointed for an infant defendant, it is never required unless when the statute makes it necessary; when for an infant plaintiff it would be required or not according to the circumstances of the case.” Mitchell, J. Thomas v. Thomas, 18 Barb. 150.
d. In an actiou for a divorce a vinculo, by wife against husband, the next friend of the plaintiff will not in the first instance be required to give security for the costs. ** The husband is to pay the costs in these cases primarily, whether he succeed or fail; at the end, it is true, the court may decree the wife to pay the costs, but this never would be done unless there were great misconduct in commencing or prosecuting the suit. It can rarely happen, therefore, that the wife or her next friend will be compelled to pay the costs; and the only thing necessary to provide against, is such misconduct in the management of the suit as would subject the wife or her next friend to the payment of costs. To accomplish this, it is not necessary to anticipate that such misconduct will occur. It is enough to allow the wife to appear by any next friend whom the court may appoint on her application, without security, and to allow him to continue to act until some abuse occurs, and then to remove him, and dismiss the complaint, unless he give security, or another next friend be substituted whose character and responsibility will be a protection against further abuse.” Mitchell, J. Thomas v. Thomas, 18 Barb. 151.
e. A substituted next friend must give security for costs. Colden v. Haskins, 3 Edw. Ch. R., 311.
f. Where the plaintiff recovered judgment on demurror, and the defendant appealed to the general term, pursuant to section 348, without giving security, and af. terwards, and pending the appeal, removed from the State, -the plaintiff, the respondent, moved that the defendant, the appellant, give security for costs; for by the ap. peal, he became plaintiff in error, and was a non-resident. "Shankland, J., denied the motion, and said, “The defendant cannot, in any legal sense of the term, be called the plaintiff, so as to compel him to file security on appeal (to the general term), under the provision of the revised statutes. The action, although appealed, was the same, and not a new one, and was pending in the same court. "It could not be treated as a new action, like the old action commenced, by writ of error, to remove the cause from one court to another.” Johnson v. Yeomans, 8 Pr. R., 140.
g. Where the appellants, a foreign corporation, gave notice of appeal under section 326, without giving security or obtaining any order on the subject, the respondents moved for an order that the appellants, (the plaintiffs) file security for the costs. The motion was denied, and per Harris, J., “ The defendants (respondents) have already recovered judgment. There is now nothing to prevent their proceeding to enforce that judyment. If the plaintiffs (the appellants) stay the proceedings, they must either give security for the judgment and costs, or the stay must be obtained from the court or a judge. In the latter case the order will be made upon such terms, as to security or otherwise, as may be just. The fact that the appellants are a foreign corporation may be a proper consideration to present upon the application for such an order.” Steam Navigation Co. v. Weed, 8 Pr. R., 49.
h. A plaintiff who resides out of the city of New York, suing in the superior court of that city, must give security for costs, if it is required of him by the defendant. Ashbahs v. Coussin, 2 Sand. 632; Blossom v. Adams, 2 Code Rep., 59.
i. And where the plaintiff in an action in the superior court, who resided in the county of Cayuga at the commencement of the action, subsequently assigned the de. mand in suit to a resident of the city of New York, and this fact was set up in oppo